Hi,
What should I read
before thinking about opening a dispensary or seeking legal advice?
This is a complex
question with many right answers.
Here are three from 3
people.
How Chris Conrad responds:
We are not
consultants, but can tell you that there is no federal
exemption for selling medical marijuana, and the state's governing
authorities are HS 11362.765 through 11362.775. Here's a link to read
the statutory language search for the sections by number:
http://www.chrisconrad.com/expert.witness/sb420-03.htm
To find out about any
local ordinances, visit:
Local California Dispensary Regulations
Attorneys including
Bill Panzer, Omar Figueroa, Robert Raich and
James Anthony offer consulting services in this
regard. Look their
information up online.
How Don Duncan
responds:
==============================
Hello. My name is Don Duncan . I am the operator of two of
California 's largest and most reputable medical cannabis dispensing
collectives (dispensaries). I was a co-founder of the Berkeley
Patients Group in 2000. Last year, I founded the Los Angeles
Patients and Caregivers Group in West Hollywood , CA . Together,
these dispensaries have served thousands of legally qualified medical
cannabis patients and their primary caregivers.
I am currently working on a book about how and why to operate a medical
cannabis dispensary. The book should be out later this year, but
there is a more urgent need for information right now. That's why
organizations like Americans for Safe Access are asking people to call
me when they want to open a new dispensing collective or cooperative in
the state. My goal is to help new operators organize their
dispensaries in ways that are as safe and as legitimate as is possible
in the current legal climate.
A well-run dispensary
is good for patients and for the grassroots movement to defend medical
cannabis rights. A poorly run dispensary, however, is dangerous
for patients and brings the integrity of our movement into question.
I hope to influence as many new dispensaries as possible to be
well-run, model organizations.
This document contains answers to frequently asked questions. Of
course, you'll want to talk to an attorney and accountant before you
open your dispensary. My advice is not a substitute for
professional help. You may also wish to read my short booklet
"Medical Cannabis and Our Community.” You can download a
copy at www.AboutMedicalMarijuana.com <http://www.aboutmedicalmarijuana.com/>
(You will need a copy of Adobe Acrobat Reader to view the file).
This booklet is a very basic discussion about the place of medical
cannabis dispensaries in the community and was written for elected
officials and neighbors. It will be a valuable tool when you
locate a home for your new dispensary. It is also good introduction to
the vocabulary of medical cannabis dispensing collectives and some of
the legal issues regarding their operation.
Hopefully, this message and the booklet will help you on your way.
Of course, I am willing to answer questions by telephone. I
also take on a small number of consulting clients in Southern California
. However, my time is very limited. Please contact me after
you read the booklet if you're interested in this service.
Is it legal to sell medical cannabis?
No. Proposition 215 makes no mention of buying or selling
cannabis. It simply allows qualified patients or their caregivers to
grow, possess, and transport medical cannabis. It also allows a
qualified patient to consume that cannabis for medical purposes. Likewise,
legislation passed by the state assembly in 2003 (CA Health and Safety
Code 11362.7) gave no explicit protection under state law for buying or
selling cannabis. Many dispensaries operate as retail stores. While
this is a practical solution, it is not legal under the state law.
It is very important that you avoid language that discusses buying
or selling cannabis when you organize your new dispensing collective or
cooperative.
What is legal under the state law?
State law recognizes the establishment of collectives and cooperatives
of patients and caregivers that are organized to provide medication (CA
Health and Safety Code 11362.775). The state assembly assumed that
these cooperatives and collectives would grow medicine and distributed
its members. Only a handful of such “true” cooperatives
actually exist in the state right now, all in rural areas where outdoor
cultivation is more feasible.
How can a dispensary be legal?
A dispensary can be legal if it is organized as a patients and
caregivers collective or cooperative under the state law. A cooperative
is a specific kind of business defined under the California Corporations
Code. A cooperative has a Board of Directors that is elected annually,
and must report individual transactions from individual members every
year. It is a cumbersome and indiscreet organizational model.
The term collective, however, is not defined under the state law.
You have broad latitude in defining what a collective is. In general, a
medical cannabis dispensing collective would share the following
elements:
- Membership
- There should be a process of joining the dispensing collective that
involves verification of medical status. Verification should
involve personal contact with the recommending physician (or his or
her agent) and verification of the physician’s identity and license
with the state. You can not make a legitimate claim to be a membership
based organization if patients simply flash a card at the door.
- Member
Based Acquisition of Medication - A dispensing collective should only
acquire excess medication from its registered members, and provide it
back to other members. The cycle of cultivation and consumption
should be a closed-circuit with no entanglement with illicit market.
- Reimbursements
and Allocations - State law allows for caregivers to be reimbursed for
cultivating medication. Nothing in state law allows caregivers to
“sell” medication. A dispensing collective should reimburse
its members for excess medication that they provide to the collective.
The collective is then free to allocate that medication to other
members. The collective can not “sell” medication to
members. The members simply reimburse the collective for
medication that is been allocated to them. The reimbursement provided
to the collective should be sufficient to cover the overhead cost --
including rent, utilities, salaries, and other operating expenses.
- Not-For-Profit
Operation - A dispensing collective should not be in the business of
making money. This does not mean that the collective operators
and other personnel cannot be paid a salary. However, collective
operators would be wise not to accumulate large sums of money. Instead,
excess revenue should be reinvested in services for members in the
ongoing grassroots effort to reform medical cannabis laws.
Alternatively, operators can lower the reimbursement for allocated
medication or return excess revenue to registered members.
Some
dispensary operators are exploring other novel organizational structures
for dispensaries. Time will tell whether or not these structures are
useful and legally valid. You should always remember that the legal
status of dispensing collectives and cooperatives is still evolving in
step with our medical cannabis laws. No one has been to court to defend
any organizational structure for a dispensary. This is entirely
uncharted legal territory.
Can a dispensing collective be a legal business?
Yes and no. The collective itself is simply an association of
patients and caregivers. As such, it is not truly a
“business.” However, it will be necessary to organize a legal
business in order to carry out the activities of the collective. There
will be taxes to pay, payroll to cover, a lease to sign, etc. Operating
a legally organized business is the best way to deal with all of these
issues. It is also a great way to avoid numerous legal pitfalls
and liabilities. The business you organize for this purpose can be a
sole proprietorship, corporation, partnership, or other legal form.
An accountant can best advise you which business form to choose.
The stated purpose of that business would be to promote and
facilitate the nonprofit, collaborative association of patients and
caregivers engaged in the medical cultivation and use of cannabis as
authorized under state law. Note that the legally organized
business does not actually buy or sell cannabis. This is the
activity of the patients and caregivers who are associated together.
Where do I get a permit?
Most cities and counties do not currently issue permits for medical
cannabis dispensing collectives and cooperatives. In most cases,
you will have to obtain a business license and a zoning permit for
retail store. Dealing with local authorities on this topic can be
very difficult. City and counties do not yet know what to do with
medical cannabis dispensing collectives. In some jurisdictions,
it's very easy to get a permit. Others may block your access to a
permit for months or even years. As a general rule, the more
liberal your local city or county the more likely you are to get a
permit to operate a dispensing collective or cooperative. Some
operators have found it useful to be very vague when they apply for the
permit. This may be necessary in a conservative jurisdiction, but it can
also be risky. Do not lie in a permit application. That is
grounds for having it revoked.
How do I find a location to rent?
Finding a landlord who will rent to a medical cannabis dispensing
collective is very tricky. You must be straightforward with your
landlord when looking to rent the property. If you mislead your
landlord, he or she can have you evicted for violating your lease.
Also, you will be starting a business relationship on very bad
footing. The first step is to choose a city in which to locate.
Then, decide on the neighborhood in which you believe the
dispensing collective will be appropriate (It is a good idea to do some
advance research on the political inclination and leadership in the city
or county you choose). Finally, you must locate properties that
are for rent in your target neighborhood. Contact the landlord for
every suitable property that is for rent. Be prepared to explain who you
are, what it is you want to do, and why will be good for the community.
Remember that landlords will also need to know that you are
financially stable and able to pay the rent. Good credit is very
important in this process.
Do I need permission from the local City Council or County Board of
Supervisors?
No. I recommend that you inform the local officials after
you secure a location and set a date for opening. Do not contact them
and ask for permission. They will likely say no. Simply
tell them that you plan to open and you would like their feedback.
You should contact the City Council representative or the Board of
Supervisor member who represents the district in which you are locating.
However, it will also be wise to contact the most liberal representative
in the jurisdiction. This person is likely to be your strongest
ally.
Do I need permission from the Police Department?
No. Just like elected officials, the Police Department is likely
to oppose a new medical cannabis dispensing collective. In fact,
law enforcement has always been the leading opponent of medical
cannabis. Do not expect a lot of support from your local police
department. However, you do need to talk to them before you open
your doors. You do not want your first interaction with the Police
Department to be by surprise. Again, do not ask for permission --
simply inform and include.
Can I go to jail for this?
Yes. Medical cannabis remains illegal under federal law, and a
recent Supreme Court decision reaffirmed the federal government’s
right to prosecute patients who use or grow it. You may face very
serious charges for operating a medical cannabis dispensary. You
have to be prepared to face this if you intend operate in this political
climate. Take some time to consider what you have to lose and how
far you are willing to go before you open your doors.
You may also face legal challenges on the state level. No one has
ever gone to court to defend the medical cannabis dispensing collective
model. While it is to be legal under state law, we will not be
sure until someone defends themselves in court. If you are
operating a dispensing collective, this might be you. While
penalties in state court are generally less severe than federal courts,
it is possible that a dispensary operator would spend time in county or
state jail.
Where do you get your medicine?
A dispensing collective must obtain its medication from its registered
members. This is a significant challenge for new dispensing
collectives. You have to build your membership base before you
have enough members to provide excess medication to supply the others.
This may be very frustrating for new operators, but is an
important phase to get through. Your members will understand if
you do not have a wide selection when you first open. Encourage
those members who do grow cannabis to bring their excess medication back
to the collective to help the other members.
Some legally qualified medical cannabis patients are very good at
growing medicine. In fact, some have extremely large stores of
excess medication. These talented patients will often be looking
for a dispensing collective or cooperative to join. Some people
refer to these patients as “vendors.” A better term is
patient-cultivator. It has been my experience that these
patient-cultivators will find you when you open your dispensary.
I am sorry to say that I cannot help you locate medication for your new
dispensing collective.
Where can I get more help?
If you have not done so already, I strongly recommend that you visit
several medical cannabis dispensing collectives. It will be very
useful to see how other people are operating their collectives, so that
you can decide if these models are right for you. You should also
make a point to join and participate in Americans for Safe Access (ASA),
the largest and most effective medical cannabis campaign in the country.
ASA has invaluable educational resources for you and the patients
you serve.
I am available for telephone consultation statewide and in person
consulting in Southern California on a limited basis.
Some additional thoughts...
Operating a medical cannabis dispensing collective is a very important
and compassionate project. It is also a lot of hard work. You
should think hard about your level of commitment and the risk you're
willing to take before you begin this project. Some operators
would do better for themselves, the patients, and the grassroots
movement for medical cannabis if they decided not to operate dispensing
collectives. There are easier and safer ways to earn a living.
This is a line of work that is most appropriate for people who are
committed to compassion – and to the cause of medical cannabis.
New operators also do well to reflect honestly upon their motivations
for opening a dispensing collective. Your motives will influence
how you operate your collective and the decisions you make regarding
your patients and community. The consequences for making bad
decisions are serious for you, the patients, the community, and medical
cannabis in general. If you say that your motive is compassion,
then your actions should reflect this. Neighbors, elected
officials, and police officers can tell when you're being insincere.
Do not put yourself and others at risk by failing to examine your
motives.
I need to include a disclaimer to be very clear about my participation
in conversations with new dispensary operators: I am not an attorney or
an accountant. The contents of this message do not constitute
professional legal or financial advice, nor am I recommending that you
take any specific actions. This information is for educational purposes
only. The contents are my own opinions.
Good luck with your project. Please keep me posted on your
progress and let me know how I can help.
Don Duncan
dondduncan@yahoo.com <http://mail.yahoo.com/config/login?/ym/Compose?To=dondduncan@yahoo.com>
http://www.aboutmedicalmarijuana.com/PDF_files/FAQ_email_updated_5_06.pdf
<http://www.aboutmedicalmarijuana.com/PDF_files/FAQ_email_updated_5_06.pdf>
Visit www.AboutMedicalMarijuana.com <http://www.aboutmedicalmarijuana.com/>
to find resources for a sensible community medical cannabis policy.
<http://mail.yahoo.com/config/login?/ym/Compose?To=asa-subscribe@lists.safeaccessnow.org>
=================================
Richard Muller volunteer for SAN my response
=================================
Hi Permit and Dispensary Information Seeker,
“How do I get a Permit so I can sell Medical Marijuana legally?”
I am not an attorney, but can point you in the right direction
before you see one.
Permits would depend on the County and City governments to develop
dispensary Guidelines and regulations working with the Medical Marijuana
community. Some Areas have developed local dispensary guidelines,
both county and City governments can use their power to do this free
from prosecution, but many are choosing to fight to overturn the law and
have, since before the law was passed in 1996.
http://www.drugsense.org/CCUA/fedres.html
<http://www.drugsense.org/CCUA/fedres.html>
http://www.drugsense.org/CCUA/9612_mcaff.pdf
<http://www.drugsense.org/CCUA/9612_mcaff.pdf>
http://www.drugsense.org/CCUA/9612_fedres.pdf
<http://www.drugsense.org/CCUA/9612_fedres.pdf>
To this day you can find this on the web site of the training NON profit
that trains the Police Chiefs.
The Use of Marijuana as a
Medicine
http://cnoa.org/position-papers-1.htm
<http://cnoa.org/position-papers-1.htm>
THE MYTHS OF DRUG LEGALIZATION
by Deputy Chief Thomas J. Gorman,
California Bureau of Narcotic Enforcement
(sounds like a personal opinion to me and one based on job security
issues)
http://cnoa.org/position-papers-2.htm
<http://cnoa.org/position-papers-2.htm>
Their favorite.....
Federal Asset Forfeiture
http://cnoa.org/position-papers-5.htm
<http://cnoa.org/position-papers-5.htm>
Check these out by clicking on anything of interest.
http://www.safeaccessnow.org/article.php?list=type&type=186
<http://www.safeaccessnow.org/article.php?list=type&type=186>
Landmark Decisions
http://www.safeaccessnow.org/article.php?list=type&type=34
Many enforcement officers still cite or arrest legitimate medical
cannabis patients and their caregivers. When the issue goes before a
judge, state or federal, their final ruling is viewed as a legal
interpretation of the law. The ruling, in effect, becomes part of the
medical cannabis law. However, federal rulings do not have merit in
state court. Legitimate patients and caregivers, arrested or cited for
cannabis violations despite protections offered by CA state law, have
been to both the California and United States Supreme Courts fighting
for their right to safe and affordable medical cannabis.
Federal Medical Cannabis Rulings
Conant v. McCaffrey <http://www.safeaccessnow.org/downloads/Conant_Ruling.pdf>
(2002): The government was
enjoined by the U.S. District Court in San Francisco from punishing
physicians or taking their DEA licenses for recommending medical use of
cannabis. The ruling states that physicians have a First Amendment right
to make recommendations, but may not aid or abet patients in actually
obtaining marijuana. Click to view the ruling <http://www.safeaccessnow.org/downloads/Conant_Ruling.pdf>
.
Conant
v. Walters <http://www.safeaccessnow.org/downloads/conantvwalters.pdf>
(2002): The Ninth Circuit
Court of Appeals held that the federal government could not punish, or
threaten to punish, a doctor merely for telling a patient that his or
her use of marijuana for medical use is proper. However, because it
remains illegal for a doctor to "aid and abet" a patient to
obtain marijuana or conspire with him or her to do so, the court drew
the line between protected First Amendment speech and prohibited conduct
as follows -- A physician may discuss the pros and cons of medical
marijuana with his or her patient, and issue a written or oral
recommendation to use marijuana within a bona fide doctor-patient
relationship without fear of legal reprisal. And this is so, regardless
of whether s/he anticipates that the patient will, in turn, use this
recommendation to obtain marijuana in violation of federal law. On the
other hand, the physician may not actually prescribe or dispense
marijuana to a patient, or recommend it with the specific intent that
the patient will use the recommendation like a prescription to obtain
marijuana. There have been no such criminal or administrative
proceedings against doctors to date. Click to view the ruling <http://www.safeaccessnow.org/downloads/conantvwalters.pdf>
.
U.S. v. Oakland Cannabis Buyers
Cooperative <http://www.rxcbc.org/legal/Legal/9th_Circuit_Appeals/2004-06-18_Order_Remand_District_Court.pdf>
(2002): A federal district
court in California issued a permanent injunction against OCBC,
prohibiting them from distributing medical cannabis. The District Court
was executing the opinion of the US Supreme Court that heard this case
one year earlier, on May 15, 2001. In that opinion, the Court dealt a
blow to medical cannabis patients by declaring that a person in federal
court may not argue that distribution of cannabis to patients was a
medical necessity. The Court was very adamant in their opinion that
federal law still criminalizes the use and distribution of medical
cannabis. It specifically left open several questions, such as
constitutional limitations on federal authority, which will be litigated
in the OCBC's pending appeal in the ninth circuit. This ruling applied
to five other medical cannabis clubs, of which at least one has filed
additional appeals not yet heard by the District Court. Click to view
the ruling <http://www.rxcbc.org/legal/Legal/9th_Circuit_Appeals/2004-06-18_Order_Remand_District_Court.pdf>
.
U.S.
v. Bryan Epis <http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ACFB822912D99F3C88256ECF0057AD2B/$file/0210523o.pdf?openelement>
(2002): A jury in a
Sacramento federal court found Chico resident Bryan Epis guilty of
criminal conspiracy and drug manufacturing charges. Jurors were
instructed not to consider any argument regarding his chronic pain, his
doctor.s prescription for medical cannabis, or the state law that allows
access to medical cannabis. Jurors were also not told about the ten-year
mandatory minimum sentence that he would receive if found guilty. Click
to view the ruling <http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ACFB822912D99F3C88256ECF0057AD2B/$file/0210523o.pdf?openelement>
.
U.S.
v. Ed Rosenthal <http://www.safeaccessnow.org/downloads/Rosenthal_Ninth_Circuit_Ruling.pdf>
(2003): A jury in San
Francisco federal court found Oakland resident Ed Rosenthal guilty of
cultivating cannabis, conspiracy to cultivate, and maintaining a place
where drugs are manufactured. Jurors were never allowed to hear evidence
regarding Prop. 215 or his deputization by the city of Oakland to grow
medical cannabis. Jurors publicly recanted their "guilty"
verdict after finding out all the facts that were left out of the trial.
Rosenthal appealed to the Ninth Circuit Court, which reversed his
conviction in April 2006. Click to view the ruling <http://www.safeaccessnow.org/downloads/Rosenthal_Ninth_Circuit_Ruling.pdf>
.
Alberto Gonzales v. Angel McClary Raich, et al
<http://www.supremecourtus.gov/opinions/04pdf/03-1454.pdf>
(2005): On June 6th, 2005
the US Supreme Court ruled that federal law enforcement officials can
prosecute medical marijuana patients, even if they grew their own
medicine and even if they reside in a state where medical marijuana use
is protected under state law. The decision does not say that the laws of
California (or any other medical marijuana state) are unconstitutional;
it does not invalidate them in any way. Also, it does not say that
federal officials must prosecute patients. Decisions about prosecution
are still left to the discretion of the federal government. The Court
indicated that Congress and the Food and Drug Administration should work
to resolve this issue. In October 9, 2002, medical marijuana patients,
Angel McClary Raich and Diane Monson, and two caregivers, filed a
complaint and motion for preliminary injunction against then-Attorney
General John Ashcroft and then-DEA Administrator Asa Hutchinson. The
case reached the Supreme Court after Ashcroft appealed the December 2003
federal Ninth Circuit Court of Appeals decision that ruled in favor of
Raich. Click to view the ruling <http://www.supremecourtus.gov/opinions/04pdf/03-1454.pdf>
.
Raich
v. Ashcroft <http://raich-v-ashcroft.com/ninthcircuitdecision.pdf>
(2004): The power of the
federal government to regulate interstate commerce, however, is not
unlimited; to pass constitutional muster, the activity in question must
.substantially affect., not just affect, interstate commerce. Thus, in Raich
v. Ashcroft, 353 F.3d 1222 (9th Cir. 2003) <http://raich-v-ashcroft.com/ninthcircuitdecision.pdf>
, a case involving two medical marijuana patients and their primary
caregivers who cultivate marijuana for personal medical use, the Ninth
Circuit granted appellants. motion for a preliminary injunction, finding
that .the intrastate, noncommercial cultivation, possession and use of
marijuana for personal medical purposes on the advice of a physician and
in accordance with state law. likely lies outside the scope of the
federal government Commerce Clause powers.
State of California Medical
Cannabis Rulings
Dale Gieringer, from
CA NORML, assisted ASA in compiling the following summaries of important
rulings regarding the California Compassionate Use Act:
People v. Trippet
<http://www.chrisconrad.com/expert.witness/trippet.htm>
(1997): The ruling applies
retroactively to persons fitting the medical use requirements who were
charged before the statute was put into effect. Under Compassionate Use
Act, even with physician's recommendation or approval, patient may not
possess an unlimited quantity of marijuana. The act can provide implied
defense for transportation if the quantity transported, method, time and
distance of transportation are reasonably related to patient's medical
needs. Click to view the ruling <http://www.chrisconrad.com/expert.witness/trippet.htm>
.
Lungren
v. Peron <http://www.marijuana.org/peronpet.htm>
(1997): This ruling does
not provide a defense for selling marijuana or possessing marijuana for
sale. However, bona fide primary caregivers may receive reimbursement
for their actual expense of cultivating and furnishing cannabis for the
patient.s approved medical treatment. A buyers club that is open to the
public cannot be considered the primary caregiver of thousands of
patients simply by a declaration on the part of the patient. The
definition of "primary caregiver" in the statute is explicit,
and it states that a caregiver must be an individual. Click to view the
ruling <http://www.marijuana.org/peronpet.htm>
.
People v. Rigo
(1999): A person arrested
for possession or cultivation of cannabis before obtaining a
recommendation from a physician for the medical use of cannabis may not
use this defense retroactively if a physician's recommendation is
obtained after the arrest.
People v. Young
<http://state.il.us/court/Opinions/AppellateCourt/2005/2ndDistrict/January/Html/2030865.htm>
(2001):In a ruling in
direct conflict with the above People v. Trippet ruling, the court ruled
that the Compassionate Use Act does not protect transportation of
medical cannabis. This means that the state now has two conflicting
precedents on this issue. Click to view the ruling <http://state.il.us/court/Opinions/AppellateCourt/2005/2ndDistrict/January/Html/2030865.htm>
.
People
v. Hayes and Foley <http://www.toad.com/drugs/deammj/rose_hayes_watts_complaint.txt>
(2001): Ken Hayes and
Michael Foley operated and cultivated for a medical marijuana
dispensary, CHAMP. Despite Lungren v. Peron, the judge in this case
allowed the defendants to use a "caregiver" defense due the
fact that through an ID card system and patients could identify CHAMP as
their ONLY caregiver. Both defendants were acquitted. Click to view the
ruling <http://www.toad.com/drugs/deammj/rose_hayes_watts_complaint.txt>
.
People
v. Fisher <http://www.safeaccessnow.org/article.php?id=1147>
(2002): Law enforcement officers are not required to abandon a
search for marijuana authorized by a search warrant when a resident of
the premises produces documents that suggest he has a physician's
permission to possess the cannabis. Click to view the ruling <http://www.safeaccessnow.org/article.php?id=1147>
.
People
v. Mower <http://www.safeaccessnow.org/downloads/peoplevmower.pdf>
(2002): This unanimous CA
Supreme Court ruling declared that patients and their care providers are
entitled to a pre-trial hearing to determine the legitimacy of their
medical cannabis defense. If this is established through a preponderance
of evidence, the case should be dismissed before going to trial. In
addition, the Court ruled that the state must show proof of guilt
"beyond a reasonable doubt" in any criminal case. In powerful
language, it declared that "possession and cultivation of marijuana
is no more criminal - so long as its conditions are satisfied - than the
possession and acquisition of any prescription drug with a doctor.s
prescription." Click to view the ruling <http://www.safeaccessnow.org/downloads/peoplevmower.pdf>
.
People
v. Tilehkooh <http://www.safeaccessnow.org/downloads/peoplevtilehkooh.pdf>
(2003): This ruling
criticizes the decision in People v. Bianco (2001) which held that it is
within the trial court's discretion to impose a probation condition
prohibiting all marijuana use for the offense of marijuana cultivation
where defendant was a long-time marijuana user and his marijuana use was
found to have contributed to his offense. Instead, the court sided with
statutes enacted by SB 420 which expressly authorizes qualified patients
to request that the trial court confirm that they may use marijuana for
medical use while on probation or released on bail. The court ruled in
Tilehkooh that no rehabilitative purpose is served by such probation
condition in cases where there is no claim of diversion or violent
behavior by defendant). Even if the court imposes a probation condition
forbidding all marijuana use, defense counsel should assert the CUA as a
defense in any probation revocation proceedings brought against a
qualified patient. Tilekooh explicitly rejected the proposition that
state courts could enforce federal prohibitions on medical marijuana use
for qualified patients as a probation condition. Click to view the
ruling <http://www.safeaccessnow.org/downloads/peoplevtilehkooh.pdf>
.
Bearman
v. Superior Court of Los Angeles
<http://www.safeaccessnow.org/downloads/Bearman.pdf>
(2004): The California
Superior Court refused to review an appellate decision blocking the
California Medical Board from searching the medical records of Dr. David
Bearman and his patient who he prescribed medical marijuana for. The
doctor was being investigated for negligence in prescribing marijuana
for the patient. The decision protects doctors and patients in
possession of medical marijuana from violations of their privacy rights.
Click to view the ruling <http://www.safeaccessnow.org/downloads/Bearman.pdf>
.
People
v. Jones <http://www.safeaccessnow.org/article.php?id=1149>
(2004): This CA Appellate
Court ruling holds that a defendant's testimony, confirming an
"approval" or "recommendation" by a doctor to use
medical marijuana, is sufficient, without verification from the doctor,
to establish for a jury the defendant.s status as a medical marijuana
patient. Click to view the ruling <http://www.safeaccessnow.org/article.php?id=1149>
.
People
v. Konow <http://caselaw.lp.findlaw.com/data2/californiastatecases/s111494.pdf>
(2004): A defendant may
"informally suggest" that the magistrate or superior court
dismiss the information or complaint "in the interests of
justice." Counsel may do this at any time, even as early as the
arraignment, or in connection with a demurrer to the complaint, when the
evidentiary foundation is laid through the submission of the doctor's
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